Fearing the McCain Supreme Court

A close look at John McCain's Senate voting record on judicial confirmations makes it painfully clear that progressives need to ignore the rantings of the Ann Coulter crowd and believe John McCain when he says he will listen to Sam Brownback and appoint judges like Samuel Alito and Antonin Scalia. On judges, McCain's no moderate: if given the chance, he will appoint justices that move an already conservative Supreme Court sharply to the right.

Indeed, one looks in vain for a judge who is too ideologically conservative for McCain: he voted to confirm Robert Bork, Clarence Thomas and, unless I've missed something, every other Republican judicial nominee voted on in his 22 years in the Senate.

Even more tellingly, as part of his negotiation in 2005 of what has been dubbed the "Gang of 14 Deal" (more on this later), McCain pushed, hard, for the confirmation of both William Pryor and Janice Rogers Brown, the two hardest-edged conservatives appointed to the federal bench by President George W. Bush.

Pryor famously said of Bush v. Gore: "I'm probably the only one who wanted it 5-4. I wanted Governor Bush to have a full appreciation of the judiciary and judicial selection so we can have no more appointments like Justice Souter." As the Washington Post editorialized in a piece called "Unfit to Judge," that statement indicates such a nakedly political view of judging that it alone should have been disqualifying for a lifetime position on the federal bench.

Brown's views were even more outlandish. In speeches given to the Federalist Society and the Institute for Justice, Brown railed against judicial opinions in the 1930's upholding the New Deal as "the triumph of our own socialist revolution." Brown, almost alone among lawyers, openly yearned for a return of the so-called "Lochner-era" in which a conservative court routinely struck down labor, health and safety laws in the early 20th century. In the words of Robert Bork (no liberal he), Lochner is an "abomination" that "lives in the law as the symbol, indeed the quintessence of judicial usurpation of power." No one in the Senate is more responsible for Brown's confirmation to a lifetime seat on the all-important DC Circuit Court of Appeals than John McCain, a fact he touts on the campaign trail.

McCain was also more than willing to rough-up President Clinton's judicial nominees. McCain missed many important votes on Clinton nominees in 1999 and 2000 while campaigning for the White House. But he was present in 1994 and was among just 12 Senators to support a filibuster of Judge Lee Sarokin, a nominee to the Third Circuit Court of Appeals who was rated unamimously "well qualified" by the ABA (the highest possible rating). McCain's decision to side with the likes of Jesse Helms and Strom Thurmond in this vote, and against Orrin Hatch and Trent Lott speaks volumes.

Indeed his support for the Sarokin filibuster is probably why he joined the Gang of 14 Deal. This Deal preserved, in diluted form, the ability of Senators to filibuster judicial nominees. It was agreed to by 7 Democrats and 7 Republicans (including McCain) in 2005, preventing then-Republican Majority Leader Bill Frist from eliminating the filibuster via a rules trick Trent Lott dubbed the "nuclear option" (because of the meltdown it would have caused in the Senate). McCain's participation in the Gang of 14 Deal is often cited as evidence of McCain's moderation, or among the Coulters of the world, his willingness to capitulate to the left. The reality is that it is simply an example of John McCain being consistent: since he had supported past efforts to block Clinton nominees via the filibuster, he wasn't in a great position to argue that Democrats should be prevented from using this tool.

Equally unconvincing is the argument by the talk radio crowd that, as part of the Gang of 14 deal, McCain threw other "fine nominees... under the bus." The two judges who were effectively denied confirmation by the Gang of 14 deal -- William Myers and Henry Said -- had serious ethical issues. Myers, a former Interior Department Solicitor under Gale Norton, was affiliated with the Jack Abramoff crowd that McCain investigated for defrauding Native American tribes . Said had issues in his FBI folder. Even if it accurate to blame McCain for preventing these nominations from coming to a vote -- a dubious proposition -- it confirms only McCain's good-government streak.

No one thinks John McCain would nominate ethically-challenged judges. But there is every reason to think that he will nominate ideological conservatives to the Supreme Court and lower federal courts.

This is important because federal courts are already dominated by Republican appointees. Seven of the nine Justices, and a sizeable majority of lower federal court judges were appointed by Republican presidents. With the Courts' liberal/moderate judges on average 15 years older than the Court's conservatives, John McCain in the White House could easily deliver the Court to the right wing for a generation.

The far right clearly understands this, which is why they have forced McCain to profess ever more stridently his devotion to their Supreme Court cause. As I've argued in more detail here, it's troubling that progressive and moderate voters seem to care so much less about this critical issue.

Comments

[MidnightMike]

Yeah, the Bush Bunch has been bad enough--can just imagine what McCain would do to the Supreme Court, and the status of the judiciary as a whole. The Bush nominees have been bad enough that the Senate kept itself in session over the holidays to prevent recess appointments that Bush would try to slide in. But McCain sure wouldn't help the picture much, with the far right banging away. The only consolation is that the "Gang of 14" situation could be used against him.

[Chris]

Mr Kendall you mention McCains filibuster of Sarokin and the aba rating. Seeming to say his filibuster was wrong becuase of this rating.

Judge Roberts had the same rating.
http://www.google.com/search?hl=en&sa=X&oi=spell&resnum=0&ct=result&cd=1&q=aba+rating+Judge+Roberts&spell=1

Judge Alito had the same rating
http://www.usatoday.com/news/washington/2006-01-04-alito_x.htm

Mr Kendall based upon your own reasoning then the huffsters were wrong to support a filibuster of both Roberts and Alito.

[Sciguy]

If the Supreme Court leans any more to the right, they're going to fall off the edge of the earth.

[Stavo]

One thing for sure, is that living under these present day republicans and their version of pure capitalism, is criminal. I shudder to think what is going to happen to America because of these people and their limited vision. One day they are going to have to pay the piper for their evilness and then we will all have to pay and it's not going to be pretty.

[coloneblog]

Gosh, I can think of 50 reasons why hardworking Americans should not vote for McCain, indeed after 7 1/2 years of Cheney/bush with a collaborating Conservative Congress, they shouldn't vote for any of the anti people Republicans, wherever they may be. This isn't "rocket science," rather it's just plain old common sense.

[Silknspark]

This Independent advises those in want of votes, to not denegrate or admonish any group of people whose votes they will need...to win.

[KarenZipdrive]

McCain's insistence on clinging to George W. Bush, supporting a 100-year war in Iraq and defending torture has indeed overshadowed the further harm he can to to the Supreme Court.
It's one more huge reason not to vote for the crazy old coot.

[MizLiz]

I nearly threw up when I saw that picture of McCain cuddling with the commander in Chief....one caption said "oh...HOLD me!"

[littleblackcat]

The American people need to raise their voices en masse to challenge one of the foundations of our nation's formation; an appointment to the Supreme Court is an appointment for life. The holding of such a position should be taken in the most serious manner toward upholding the laws for the protection of the PEOPLE. Not corporations, not big business. No fealty for their appointments should come into play, no returning of favors. Some of our old laws have outlived their usefulness and it is time, and past time, to have term limits so that when things are being done the wrong way, they can only continue to be so for a limited number of years. No man (or woman) should have the powers of God, and that is the the position taken by too many Supreme Court Justices.

[Technician]

littltblackcat,
I agree that no man(or woman) should have the powers of God. Also, I agree that is the position taken by too many Supreme Court Justices. What better evidence of this can be found thanin Justices who voted to give authority to kill 50 million uborn babies since 1973. There are Justices in office today who want to subject American law to the United Nations and the European Union. If, indeed, the Constitution should be changed to revoke lifetime appointments these would be good reasons. Remember, though, if Supreme Court members can be removed at the displeasure of one group, when the political winds change, those can also be cast out.

[WireDolly]

Oh, the poor, poor little babies! Is anyone else as tired of this boring charade as I am?

My mum paid the MAFIA for an illegal abortion. Bush vetoed healthcare for 10 million "precious little children" and thus validated every abortion done for economic reasons, ever.

And the President who wants world government is none other than your very own Christian Crusader, George W. Bush, who lost the popular vote and was installed by the same USSC that "killed all those babies", who sold the USA to the Communist, godless, Pro-Abortion/One-Child-Only Chinese, and who, by doing so, has already sold out the sovereignty of the United States.

We couldn't even begin to pretend to employ 50 million more resource-depleting mouths to feed in the Bush economy--could you personally guarantee jobs and a decent living for them alll? If not, then go and kiss some right-wing stem cells already. The world is overpopulated and polluted enough!

[bottomdwellah]

Whah, Whah, Whah! Crocodile tears for the "unborn victims". How about the millions in poverty in the inner cities? How about the farming famililies losing the land they have owned for generations? What about the,40 MILLION IS IT?, without health care. Funny, it's the VERY SAME PEOPLE who are so fervent about the death penalty, who so oppose abortion! Hypocrites, you should go live in Saudi Arabia, where religion and goverment are one in the same. Did you ever hear of a thing called "separation of church and state". GO LIVE IN SOME OTHER COUNTRY! Oh, and one more thing, the "unborn victims" never sinned, right? Well then, you should worry not, as they have gone directly to heaven. Maybe that's why these nutbag right wingers are so opposed to it? A free ticket to heaven? Now that's not fair is it!

[MizLiz]

Amen, blackcat. I've been telling people for a long time...you're not voting for a president, you're voting for the Supreme Court. Do I want more justices like Alito,Scalia and Thomas ? We need to get some balance on this court quickly, or it's going to turn into a gaggle of mullahs, ruling by fiat.

[Dangoodbar]

The fact is to all those with a brain the result for the Dems in the gang of 14 was to snatch defeat from the jaws of victory.

Had the senate voter to end the filibuster it is likely the Dems would have won. If the Dems had lost then the Repugs would have had no choice but to appoint judges openly opposed to Roe.

The combination of the heavy handedness and ability to force through judges opposing Roe would have resulted in a back lash against Repugs.

That is if people actually thought Bush would overturn Roe, it would have cost Bush and the Repugs the 2004 elections.

Bush and the Repugs understood this. That is why the Dems were in a can't lose position.

But true to form the Dems managed to lose anyway.

McCain and six other Repugs were able to convince enough weak and stupid Dems to cave on an issue that the Dems otherwise could not but gain a huge victory.

The result was that Repugs who had denied Clinton the ability to get his judges a vote for no reason other then Clinton was a Dem were able to get all but two of the worst nominees for judges in American history approved.

[CitizenFace]

Clearly, our justice system has become lamentably politicized. It's obvious to even casual observers that presidents appoint judges with whom they are ideologically aligned. This applies to all of our nation's TWO parties. Sad.

My favorite justices always waffle depending on the issue at hand, but by now both parties have learned to vet their appointments more thoroughly.

[wrabbitt]

Supreme Court Nominees don't scare me as much as the lobby favors to be returned by Hillary. Big drug/insurance have already been put in a position where someone with no medical education can decide who lives and who dies. When the price doubles who will you blame? Hillary? or the lobbyist who CONTROL her?

[BARRISTER]

wrabbitt; name ONE politician, ONE, who has not received some sort of assistance from a "lobby"
Bush did, Obama, did, McCain did, Huckabee did.

Whats your point??.

[CalliDem]

Yeah, kinda makes you wonder why the Repigs are giving millions to Obama and why so many of them are voting for him. Hummmm

We are one vote away from losing Row V Wade

Wake up people

[Silknspark]

What is a Repig?

[Macready]

you are so right about McCain and the Supreme Court . . . we have to have a liberal Dem in the WH or we are all doomed . . . if not for all those Republican nominations to the Supreme Court the chimp wouldn't be in the WH

[leftbehind2000]

All the jackboots need is one more far right ideologue to go along with Scalia, Thomas, Alito and Roberts and they will control every important decision for the conceivable future. That's what is at stake here.

Of all the myriad reasons to vote for the eventual Democratic nominee, no matter who it is, this is the most important. Given the age of the current jurists on the SCOTUS, there will be at least 2 openings and as many as 4 during the next 8 years.

[Silknspark]

What are jackboots?

[markusmarkus]

Fascist footwear

[DenverCurmudgeon]

The next President could name the replacements for three "liberal" supreme court justices:

John Paul Stevens b 1920
Ruth Bader Ginsberg b 1933
Anthony M Kennedy b1936

I'll vote for a "yellow dog" to keep the social conservatives from controlling the court for the next 25 years.

[leftbehind2000]

While Kennedy isn't really a liberal, your comment in every other sense is dead on.

[dsbsh]

No it's not. Stevens and Ginsburg are moderates. The last true liberal on the Court was Thurgood Marshall. They do, however, look liberal compared to their uber-conservative colleagues.

[BoulderSue]

All of you Independents and Libertarians who think that John McCain is an independently minded maverick on the issue of judiciary appointments had better think three timme before pulling the lever (or whatever) for McCain. Remember, the President comes with a package of desired appointments, not just a VP. More of the same on the Supreme Court, maybe worse than what we've seen with Bush, could truly turn this country into one we don't recognize. More Alitos. Thomases and Robertses, added to by a Judge Bork are sure to come with a McCain presidency. A hero, yes! A competent independent president, you are fooling yourself.

[abluevoice]

I've never understood what made McCain a hero? At least in any greater sense than Kerry, who actually did heroic acts during the war. As far as I know McCain's heroism was he survived intolerable treatment as a POW during the war. A strong survivor yes a hero???
Yesterday a blogger said McCain finished last in his class at the Naval Academy. If this is true is this really the best the Republican Party can come up with another poorly educated President representing the US to the world? Plus he's 71 years old whetever he did learn he has probably forgotten most of it. I'm not being harsh on the man just realistic.
This country after 7 years of Republican rule is a mess and we are faced with an enemy, radical Islam, that is like a world wide terminal cancer that is just reinforced by incompetent and political Republican remedys.
McCain and the Republicans are offering 4 more years of the same and even greater structrual damage with their potential court appointees.
If they win in 08 the bickering Dems will have only themselves to blame.

[legalclubs]

I think the media now applies the label of "hero" to all our U.S. soldiers who've seen combat. In a sense this isn't a bad thing, especially coming off the terrible treatment returning soldiers received from certain members of the left after Vietnam. In fact, it can clearly be justified with those people who volunteered as they choose to put their lives in harms way (McCain: flying a fighter over hostile enenmy territory, Kerry: crewing a swiftboat in hostile waters) for what they believed was the benefit of the United States and its citizens. This seems to be the definition of hero to me. Now are we watering down the word? Should it only be received for Medal of Honor winners or the like? I don't think that is necessary. In my mind, McCain, like Kerry, is a hero. I definitely don't agree with his politics, but don't attack his service to his country.

[Silknspark]

What qualities did you say you want in a president?

[WireDolly]

This is true, McCain was DEAD LAST at Anapolis. Dad went to school with him, he knew this asshole long before the rest of us were subject to his charade.

Then, on a failed mission in Vietnam, Mr. McCain was captured and tortured by the Vietcong. Failed grades, failed mission, and no doubt brainwashed by the Chinese. He plays war hero/victim on the taxpayer dime in the Senate, as a paid and lobbied government employee.

As well, McCain dumps the wife who stood by him during his Chinese internship and marries Mrs. Bud, so that he can finance his 2000 campaign with money he couldn't earn himself. A real bootstrapper! Only difference between him and Bush: it's wifey money with McCain, with Georgie, it's daddy money. They don't like to work, obviously.

McCain is no maverick - but he is the MANCHURIAN CANDIDATE.